Eaton v. Atlas Accident Insurance , 89 Me. 570 ( 1897 )

Strout, J.

Plaintiff was thrown from a bicycle, while riding on Sunday, and injured. It is admitted that he was totally disabled from pursuing his vocation for four weeks, and that seasonable and sufficient notice was given the company. At the time of the injury, plaintiff held a policy of defendant company, insuring him at the rate of twenty-five dollars per week, not exceeding fifty-two weeks, against loss of time resulting from bodily injury which wholly disabled him from transacting any and all of the duties pertaining to his occupation, as stated, being that of a letter carrier. In the margin of the policy it was provided that “ if the insured be fatally or otherwise injured while engaged for pleasure or recreation in amateur bicycling (not racing or coasting) yachting, fishing or gunning, indemnity will be paid at 5th class rates as given in the company’s latest manual.”

It is admitted that if the plaintiff’s accident is within this clause upon the margin of the policy, the amount recoverable is only twelve dollars and fifty cents per week.

The defendants deny liability, under a provision in the policy, that the contract shall not cover an injury received “while or in consequence of violating any law,” and strenuously insist that the plaintiff’s riding on Sunday was in violation of R. S., c. 124, § 20, relating to the Lord’s day.

The plaintiff rode from his home about six miles to attend the funeral of his friend, and returned by another road about four miles greater distance than the direct road home. It has been held that riding to a funeral, or walking or riding for health and exercise, on the Lord’s day, does not fall within the prohibition of the statute. It should not be construed to prohibit the doing of those things necessary and suitable to health. Sullivan v. Maine Central R. R. Co., 82 Maine, 198. The defense upon this ground is without merit.

The defendants claim that, if liable at all, it is only for twelve dollars and fifty cents per week, that being the amount recoverable, if plaintiff was amateur bicycling for recreation or pleasure, within the marginal clause of the policy. If the plaintiff had ridden to the funeral and returned by the. direct route both ways, it might well be held as a work of necessity or charity, and. not a riding for pleasure within the marginal clause; nor would it fall within the agreement in the application, which was made part of the policy, “that for any injury received while doing any act or thing pertaining to any occupation or exposure claimed by the company as more hazardous,” he should be entitled to receive only such amount as the company pay for such increased hazard. This provision relates to an occupation, employment or business, — a vocation, and not to an avocation, occasional, exceptional, and outside his usual and regular vocation. But it appears that after attending the funeral, plaintiff returned home by a circuitous route, which increased the distance by several miles. The conclusion is irresistible that this was done as a recreation and for health or pleasure; and while not obnoxious to the Sunday statute, does bring the case within the marginal clause of the policy. The plaintiff’s claim is therefore limited to twelve dollars and fifty cénts per week for the four weeks of his disability.

The case discloses no ground for interest prior to the date of the writ. At the April term, 1895, defendant offered to be defaulted for fifty-one dollars, but we are not furnished-with the date of writ, and cannot determine whether the amount of the offer of default is equal to or less than the amount plaintiff is entitled to recover. This can be determined below, that proper judgment as to costs may be rendered. •

Judgment for plaintiff for fifty dollars and interest from date of the writ.